IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38285
STATE OF IDAHO, ) 2011 Opinion No. 76
)
Plaintiff-Respondent, ) Filed: December 21, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
ALBERT RAY MOORE, )
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Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge.
Second amended judgment of conviction for felony driving under the influence,
affirmed.
Nevin, Benjamin, McKay & Bartlett; Deborah A. Whipple, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LANSING, Judge
Albert Ray Moore appeals from the district court’s second amended judgment of
conviction for driving under the influence, which the district court said it issued to correct a
clerical error in the first amended judgment of conviction. At issue is whether the district court
possessed authority to enter the second amended judgment.
I.
FACTS AND PROCEDURE
In two cases filed in 2006 and 2007, Moore was charged with driving under the influence
(DUI). In each case, the charge was enhanced to a felony pursuant to Idaho Code § 18-8005(5)
on grounds that Moore had twice previously been convicted of DUI within the preceding ten
years, including a conviction in North Dakota. In both Idaho DUI cases, Moore challenged the
State’s reliance on the North Dakota conviction on the contentions that it did not qualify as a
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“substantially conforming foreign criminal conviction” under Idaho Code § 18-8005(5), 1 and
that the conviction was constitutionally defective. After the district court denied Moore’s motion
to dismiss the present case on either basis, Moore entered a conditional guilty plea. His plea
reserved the right to appeal several of the district court’s rulings, including the court’s rejection
of Moore’s challenge to the State’s use of the North Dakota conviction. The district court
entered a judgment of conviction imposing a unified sentence of six years, with one year fixed.
In Moore’s other DUI case, he pleaded not guilty and went to trial. In that trial, the
district court admitted evidence of the North Dakota DUI conviction over Moore’s objection that
it was not a substantially conforming foreign criminal conviction, that the Wyoming conviction
was constitutionally defective, and that the documentary evidence of that conviction was not
properly authenticated. Moore appealed in both cases.
The two appeals were consolidated and addressed by this Court in State v. Moore, 148
Idaho 887, 231 P.3d 532 (Ct. App. 2010). We affirmed the district court’s determination that the
North Dakota DUI conviction was “substantially conforming” and that Moore had not shown
that conviction to be constitutionally defective. These rulings rejected the challenges to use of
the North Dakota conviction that Moore had made before the district court in this case.
However, we also vacated the judgment of conviction in his other DUI case because the
documentary evidence of the North Dakota conviction was not properly authenticated and
therefore had been wrongly admitted at trial. Id. at 892-99, 231 P.3d at 537-44.
In that appeal, Moore contended that he and the district court had “agreed” at the change
of plea hearing in the present case that his guilty plea could be set aside if he obtained any
appellate relief in the other case regarding the North Dakota conviction. He argued that because
this Court had determined that documentary evidence of the North Dakota conviction was
wrongly admitted at trial in the other case due to lack of proper authentication, the present case
should be remanded for “further proceedings as intended by the district court.” Id. at 903-04,
231 P.3d at 548-49. Because ambiguous statements made at Moore’s change of plea hearing
concerning the scope of the reserved issue left open this possibility, we remanded this case “for
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Idaho Code § 18-8005 at that time provided that a DUI could be elevated to a felony in
certain circumstances based upon prior convictions for violation of Idaho’s DUI statutes or a
“substantially conforming foreign criminal violation.”
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proceedings consistent with our opinion and the Rule 11 plea agreement.” Id. at 904, 231 P.3d at
549.
On remand, the district court determined that the reservations in Moore’s conditional
guilty plea were not as broad as Moore contended in that he did not reserve a right to relief from
his guilty plea if the Court of Appeals found evidentiary trial error in the other case. The district
court therefore effectively denied Moore’s motion to withdraw his guilty plea. Perhaps so that
Moore would have a written document from which to appeal, the district court stated its intent to
enter an amended judgment which would “impose the sentence as earlier set out in the Court’s
judgment.” Later in the same hearing, the district court said that it would “impose the sentence
of one year fixed, four years indeterminate for five years,” which was not an accurate statement
of the original sentence. On June 11, 2010, the amended judgment of conviction was entered,
stating a unified sentence of five years, with one year fixed. Moore did not appeal, and neither
did the State.
On September 10, 2010, the State filed a motion to amend the judgment of conviction a
second time to “correct an apparent clerical mistake.” The State pointed out that the original
judgment of conviction imposed a unified sentence of six years, with one year fixed and that
because at the hearing on remand the district court had stated its intent to “impose” that sentence
again, its amended judgment of conviction stating a unified sentence of five years, with one year
fixed, was a mistake. Over Moore’s protestations, the district court agreed that it had made a
clerical mistake correctable under Idaho Criminal Rule 36, and entered a second amended
judgment of conviction expressing a unified sentence of six years, with one year fixed. Moore
appeals.
II.
ANALYSIS
On appeal, Moore asserts that the district court did not have jurisdiction to enter the
second amended judgment of conviction because I.C.R. 36 allows the correction of only clerical
errors, and not a judicial error as Moore contends occurred here. The State counters that the
district court exceeded the scope of this Court’s remand from the earlier appeal and had no
authority to enter the initial amended judgment in the first instance. Therefore, reasons the State,
the original judgment of conviction, and the sentence it expressed, remain in effect. We do not
find it necessary to resolve the issue raised by the State because, even assuming the district court
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possessed authority to enter the initial amended judgment on remand, Moore has shown no right
to relief.
Moore claims that the district court erred by determining that I.C.R. 36 authorized the
court to make the correction that it did. The rule states:
Clerical mistakes in judgments, orders or other parts of the record and
errors in the record arising from oversight or omission may be corrected by the
court at any time and after such notice, if any, as the court orders.
Relief under I.C.R. 36 and its civil counterpart, Idaho Rule of Civil Procedure 60(a), is strictly
limited to the correction of clerical errors, as opposed to judicial or legal errors. Silsby v.
Kepner, 140 Idaho 410, 412, 95 P.3d 28, 30 (2004); State v. Phillips, 99 Idaho 354, 355, 581
P.2d 1173, 1174 (1978); State v. Allen, 144 Idaho 875, 878, 172 P.3d 1150, 1153 (Ct. App.
2007). The court’s intent must be expressed on the record in the first instance before a later-filed
document having content inconsistent with that intent can be corrected as a clerical error or
mistake under the rules. Silsby, 140 Idaho at 412, 95 P.3d at 30; Allen, 144 Idaho at 878, 172
P.3d at 1153. This judicially-imposed limitation exists to ensure that a trial court does not use
either rule as a vehicle to simply change its mind and exercise its discretion differently from the
way it was exercised in the original determination. Silsby, 140 Idaho at 412, 95 P.3d at 30. In
the context of criminal sentencing specifically, this Court has stated that I.C.R. 36 “does not
provide a vehicle by which a trial court may amend a sentence to give effect to the court’s
previously unstated intent that alters the sentence.” Allen, 144 Idaho at 878, 172 P.3d at 1153.
Hence, if the proceeding at issue here had been a sentencing hearing at which a court was
required to orally pronounce sentence, Rule 36 could not have been used to later “correct” the
judgment to state a sentence different from the one that was orally imposed. Allen, 144 Idaho at
878, 172 P.3d at 1153; State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct. App. 1989).
Based on this principle, Moore asserts that the district court’s oral recitation at the remand
hearing of a “sentence of one year fixed, four years indeterminate for five years” controls.
The foundation for Moore’s assertion is the district court’s statement at the remand
proceeding that it would “impose” a sentence. However, contrary to Moore’s repeated assertions
otherwise, the remand proceeding here was not a sentencing hearing. Instead, this Court
remanded the case for the district court to determine the scope of the conditions on Moore’s
conditional guilty plea, specifically, whether it was a condition that the plea could be withdrawn
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if Moore obtained relief on appeal in his other case on an issue other than the constitutional and
the statutory “substantially conforming” challenges to the use of the North Dakota conviction.
Regardless of the district court’s determination of this question on remand, no resentencing was
necessary. If Moore prevailed on remand, he would be entitled to withdrawal of the guilty plea,
and if he did not prevail, the original judgment and sentence would remain in effect. The district
court’s use of the parlance “impose” at the remand proceeding was inaccurate and ill-advised
because Moore’s sentence had been imposed before the first appeal. In any event, the district
court did not purport to resentence Moore but, instead, stated an intent to reiterate the original
sentence. Based on the district court’s comments at the hearing, the only reason the court
entered an amended judgment was to create a filed decision from which Moore could again
appeal. 2
Thus, the district court had no intent to make a substantive change to the sentence
already in place. The mistake that the court made was in describing that extant sentence as “one
year fixed, four years indeterminate for five years” as opposed to the actual sentence of one year
fixed followed by five years indeterminate for a unified sentence of six years. The correction
made in the second amended judgment was to effectuate the court’s intent as stated on the record
at the remand hearing. The district court possessed authority to make this correction under
I.C.R. 36. Therefore, the district court did not err in correcting the amended judgment through
entry of the second amended judgment.
The second amended judgment of conviction is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
2
While this may have been a way to accomplish what the district court sought to do, see
State v. Payan, 128 Idaho 866, 867, 920 P.2d 82, 83 (Ct. App. 1996), the better method would
have been for the district court to enter an order denying Moore’s motion to withdraw his plea.
Such an order would have been appealable as an “order made after judgment affecting the
substantial rights of the defendant.” Idaho Appellate Rule 11(c)(9).
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